FEBRUARY 2010 VOL. 82 | NO.



Business Valuation Reports
The Importance of Proactive Lawyering
By Peter E. Bronstein and David A. Typermass

Also in this Issue
A Primer on the New York False Claims Act Employment Waivers and Releases “Moot Points”

Electronic copy available at: http://ssrn.com/abstract=1560584

Knowing the rules from the start will save headaches later. read the relevant documents. The theory should. It’s enough to know everything by the time you’re done. Second. If a statute or the leading case established an order in which you should articulate the factors. You don’t need to know everything about the law before you start. W Be Prepared To tell a persuasive story. and the issues. even if it disagrees with all else. must believe that you. Weave it into your presentation of the law and your facts. and arrive at a conclusion. outline your arguments. skeptical professionals. An effective point heading. This column offers some suggestions on how to persuade through preparation. all written in clear. if you have one. lead with your best points first. research the law. best-supported arguments. the conflict. Judges are busy. To persuade. precise. begin with a threshold issue. identify the arguments that’ll give your client the remedy it seeks. They’ll determine your page limit. you must make it easy for the court to rule for your client and to want to rule for your client. and strong arguments supported by good storytelling and citations to authority. Select only your strongest. together with the reasoning that justifies that outcome. and plain English. lead with the argument that’ll give your client the greatest relief. Trying to know everything leads to procrastinating. Develop a case theory. What you include is as important as what you exclude. Gather information from your client. Trace the elements of a statute or the factors of a test. Reading the headings in order shows your theory of the case with logical reasoning. Well-written point headings provide a quick summary of your argument and answer each question presented. consider the logic of your issues. Outline your brief before you start writing. and law to support it. com- municated in a simple. understated. and editing. They can spare but limited time to consider your case. when combined with subheadings that break up complex issues. deadlines. A point heading comprises a conclusion or an action that the writer wants the court to take. It should be an emotional message. Include your theory in every opening paragraph after each heading and subheading. simple. or theme. unemotional way. seek the correct result and that you have the arguments. not many weak ones.com/abstract=1560584 . If two issues are equally strong. So is starting early and setting time aside to write without distractions. secure your remedy. The theory should summarize your case. such as service of process. and talk to necessary witnesses. Your job is to help them. credible. Focus on a few strong arguments. Then frame the facts into legal issues and narrow your legal research. You’re not writing a law-review article or historical treatise with a neutral view of the facts. short. organization. confident. Before all else. Spending the time to learn the facts. For you to persuade. describe how the law applies to the facts at issue. learn the facts. procrastinating is the enemy of doing it right and getting it done. will concisely cite the applicable law. To do so. You’re writing to make sure that the reader agrees with the facts as you tell them. if accepted. brevity. and structure your brief is time well spent.THE LEGAL WRITER BY GERALD LEBOVITS Persuasive Writing for Lawyers — Part I inning writing is persuasive writing. readers. Ask questions. It’ll be argumentative. Don’t stop until you understand the key details. Once you’re confident that the court has the jurisdiction to address your client’s claim or defense. Use good time-management techniques. and the remedy Continued on Page 58 64 | February 2010 | NYSBA Journal Electronic copy available at: http://ssrn. Work your case theory into your statement of facts by phrasing your case theory persuasively. There should be one point for each ground on which relief can be granted. The way to persuade is to assert your position with accurate. come up with point headings. you need to know the background. Like the vice of scapegoating. Two exceptions: First. follow that order. if the court agrees with that point it can grant relief. honesty. as a lawyer. especially judges. and content. the characters. or the statute of limitations. Weave your theory into every part of your brief. Arrange your issues in order of strength. You must write effectively by transmitting only necessary information favoring your position. Then consult your local rules and all applicable rules of procedure. It’ll avoid hypotheticals and abstractions. Discard weak issues. concise. jurisdiction. Avoid surprises. fact. Judges must be able to extract the gist of your case quickly. format.

This statement should be concise. Bring the characters to life with forceful verbs and concrete nouns. The narrative need not be chronological. Judges will feel com- fortable resolving the case in your client’s favor if they can step into your client’s shoes. be prepared to acknowledge and accurately state the applicable legal standard. 58 | February 2010 | NYSBA Journal . do not opine. On appeal. order. not caselaw. This is the most important part of the brief. you must write the facts in a way that impresses the court that how you present the facts is the only way the facts should be viewed. emphasize that the trial court’s adverse legal conclusions don’t bind the appellate or reviewing court. Persuasive writing in this sense is an inverted pyramid. The events. after the questions presented. You’ll know which facts are worth mentioning in your facts section by whether you’ll argue them later in your argument section. The judge will filter your brief through the issues you present. You need to present your client’s version of the facts convincingly. Offer citations to show how the highest court in your jurisdiction has applied the standard in similar cases. For most judges it’s the first page. your theory of the case. the characters. Make the focus of your facts statement support your client’s theme. don’t quote witness after witness. they’ll read. for example. Show. Then state the facts of the case. Identify the nature of the case. Outline and organize each issue in your argument section using the CRARC method.Continued from Page 64 you seek. CRARC stands for Conclusion. Judges want to understand the big picture before they read the details. Beyond those two tests. the standard review depends on the type of lowercourt or administrative decision. Take the opportunity from the start of your fact section to paint your client favorably. hearing. without argument. Don’t be conclusory. Judges want the conclusion first so that they know whether they have the jurisdiction to grant your proposed remedy. or trial transcripts. and ending your narrative on a high note. Your story needs a logical narrative that leads directly to your desired outcome. Start your brief with an introductory statement or summary of argument. which side you represent. don’t let two sentences go by without making it obvious. Be Organized Your reader must understand your brief. not conclusory and exaggerating adjectives and adverbs. That forces you to argue issues. You’ve already developed your issues and listed them as point headings in your table of contents. Make the judge empathize with your client. mention and apply them all. your facts section should be persuasive without being argumentative. An organized brief is easy to read. Second. Use the facts section to win the court over. Humanize clients by naming them throughout your brief. Introduce the questions presented or issue statements by exploring your deep issue persuasively and in no more than 75 words. It’s up to you and opposing counsel to present the facts — facts you and your adversary will glean from the affidavits. judgment. An effective table of contents signals an approachable document. it should stand alone. and Conclusion. Once you’ve identified the standard. but it should serve as an overview of your position and the outcome you intend. Your fact statement must meet two tests. your claim. Save the argument for the argument section. Judges won’t know the facts other than through the briefs and the admissible evidence. developing. Rebuttal and Refutation. Giving the conclusion first also gives judges context for what they read later. best-supported arguments. and the remedy you seek. Now develop the arguments to get that answer. or decree you’re appealing. Analysis. Show the court that it can rule in your favor because your client’s case satisfies the standard. the standard is the burden of proof with the correct presumptions. The table of contents presents the point headings and subheadings. although a chronological narrative often works best. Through perspective and organization. Include the specifics of your case that make the standard apply and how the court should enforce it. Anyone reading your facts must understand your case without reading any other document. organize to explain why the standard works to your client’s advantage. judges interpret facts to determine what relief they can and will grant. Rule. If the standard is a de novo review on the law. At the trial-court level. clearly and without gaps in logic. It’s methodical. Tell the judge what really happened. exhibits. Engage the judge by telling a compelling story. the Legal Writer’s patent-pending improvement over the IRAC method. Set the scene by describing the background. Tell a story. When you organize your argument section. The table of contents with point headings sets out your brief’s roadmap. affirmations. and deposition. Assume that the judge knows nothing about your case. Create a table of contents. Maintain the judge’s focus by starting. It cuts to the chase. Mention only those facts relevant to your sought-after relief. Then tie the standard to the substantive sections of the brief by explaining how the standard has been satisfied. the organization flows naturally. and the theory must come together in a credible plot. The questions you pose foretell what the judge must decide. Cull the meaningful from the mundane. It lets you maintain focus and keep your goals in sight throughout the drafting process. Select only your strongest. First. You’ve framed them to allow one possible answer: the one you want. Introduce the conflict and guide the reader to the remedies that should result. If several standards apply. If you prepare before you start writing.

support it with your best authority. Not mentioning unfavorable law or contrary arguments won’t make them go away. NYSBA Journal | February 2010 | 59 . One goal in persuasion is to show that you’re right because you are right more than that you’re right because the other side is wrong. Explicitly stating the reasons you reference a particular authority will emphasize its importance. Do so in an order that works for your client. Judges want to decide correctly and for the right reasons. Summarize your argument first and then explain. present the rules of law that support your conclusion. Begin with a strong topic sentence to introduce the issue. Now press the entire argument forward by tying the legal issue and your arguments to the relief you seek. You’re not in law school any more. Don’t give more rules than the court needs to decide the case. your statement of the law will be brief and condensed. but exclude defensive or wordy references to opposing briefs — and especially don’t suggest that your opponent or the judge below is lying or stupid. Extensive legal analysis will be necessary only when the law is unclear or when it turns on novel or Deal with issues. Save quotations for those times when paraphrasing will fade the nuance or when you can’t explain the law in your own words more concisely or more convincingly than the authority you’re quoting. After each rule. Explain why your opponent’s arguments are flawed or unsubstantiated. Include the language of the legal test when you apply the facts. pointing out the similarities and differences of the decision with the facts in your case. You don’t need to follow your opponent’s order. state the issue persuasively. In the Rebuttal and Refutation section. not simply deciding logically. state the other side’s arguments fairly by setting up a straw man without repeating the rules you laid out in your Rule section. Judges want to know that they’re deciding justly. explain their relevance only in parentheticals. Mention consistency between the policy of the applicable rules and your facts. even if they’re unworthy of your respect. Discuss in detail particularly favorable or unfavorable cases. ■ GERALD LEBOVITS is a judge at the New York City Civil Court. This engages the reader in your case theory. The judge might find them. Doing so strengthens your brief. John’s University School of Law. and your opponent might bring them up and use them against you. In those rare cases when you need block quotations — if you’re asking the court to interpret a statute or contract or if you need to lay out a multi-part test from a seminal case — introduce them before the quoted text. Punch holes into your opponent’s case. In the final Conclusion section. Don’t assume that your reader or opponent is stupid. paraphrase. You can’t be too direct in stating what you want for your client.In the first Conclusion section. Also. Your goal is to get your readers to arrive at your conclusion on their own.com. Point out inaccuracies in your opponent’s description of the facts or interpretation of those facts. Failing to address unfavorable arguments in advance is strategically wrong and sometimes unethical. Show that your opponent’s theory of the case is invalid. Judge Lebovits’s e-mail address is GLebovits@aol. Be specific when describing how the judge should decide your case. Describe factual details by creating images with which the reader can identify. although not obsequiously. and helps readers find information when they search the record. you should order the arguments in your Rebuttal and Refutation section from your strongest to your weakest. apply the law to the facts — facts mentioned in your facts section. In the Rule section. be brief with your citations. But the Rebuttal and Refutation section is your opportunity to weaken the other side. Deal with issues. state the relief you seek. as if cases were more important than the rules for which the cases are cited. For all other references to the law. Move from the specific to the general and from the binding to the merely persuasive. not your adversaries’ motives and personalities. Just as you should order your lead arguments in your Rule section from your strongest to your weakest. In the Analysis section. Distinguish the law on which your opponent relies. The Legal Writer continues in the next issue of the Journal with three more way to persuade: honesty. not your adversaries’ motives and personalities. It’s the novice who devotes paragraph after paragraph to discussing cases. Each time you explain the law you have a new opportunity to advance your theory. Most times judges are forbidden to give you more than you ask for. Block quotations are distracting and often go unread. This two-part column is based on an unpublished article by the same title he wrote with Lucero Ramirez Hidalgo for a Continuing Legal Education program he gave for the Practising Law Institute in November 2009. Judges love civility and professionalism because they can reach a decision without being distracted by hostility. Be specific. Distinguishing the facts of your case and explaining why a statute or case doesn’t apply will advance your position. brevity. makes it seem reliable. not from your opponent’s strongest to weakest. This initial section must capture the judge’s interest by announcing a logical syllogism that ends with your conclusion. This is the CRARC’s most important part. Always address the court and your opponent respectfully. uncommon grounds. and revision. That’ll force your reader to understand their import. in Manhattan and an adjunct professor at Columbia Law School and St. If your rule is well established. Otherwise. cite the record when you refer to the facts. Show the reader how the rules apply to your facts. Housing Part. You provided the legal issue in the first Conclusion section.

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